Law Commons^™

The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein

Articles by Maurer Faculty

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …

Productive Mindset Interventions Mitigate Psychological Friction And Improve Well-Being For Bar Exam Takers, Victor D. Quintanilla, Sam Erman

Articles by Maurer Faculty

By participating in a brief productive mindset intervention, prospective lawyers improved their wellbeing and performance on the California Bar Exam. Those are the initial results of the research conducted by our interdisciplinary, multi-institutional research team with support from AccessLex Institute and in partnership with the State Bar of California. It did so by mitigating psychological friction and helping test takers reframe stressful experiences. This column discusses our findings and the implications for efforts to make evidence-based gains in bar exam performance, wellbeing, and attorney licensure systems.

Mindsets In Legal Education, Victor D. Quintanilla, Sam Erman

Articles by Maurer Faculty

If you teach 1Ls, you may share the following concern. At the start of each year, we meet enthusiastic and successful students who are passionate about law. They arrive on campus invested in learning, ready to work hard, and eager to participate in class. But trouble brews soon thereafter. Students worry whether they have what it takes to do well, whether they will fit in, and whether they belong in law school. Answering questions in class, many sense (rightly or wrongly) that their professors and peers think that they aren’t smart and that they will not do well. When they …

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the …

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …

Access To Counsel: Psychological Science Can Improve The Promise Of Civil Rights Enforcement, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

Employment discrimination claimants in general, and racial minority claimants in particular, disproportionately lack access to legal counsel. When employment discrimination claimants lack counsel, they typically abandon their claims, or if they pursue their claims, they do so pro se (without counsel), a strategy that is seldom successful in court. Access to counsel is, hence, a decisive component in whether employment discrimination victims realize the potential of civil rights enforcement. Psychological science analyzes access to counsel by identifying psychological barriers—such as threatened social identity, mistrust in legal authorities, and fear of repercussions—that prevent employment discrimination victims from pursuing counsel. The analysis …

Critical Race Empiricism: A New Means To Measure Civil Procedure, Victor D. Quintanilla

Articles by Maurer Faculty

This article reflects the second phase in a research line examining the effects of highly subjective pleading rules, specifically, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and was an invited contribution to a symposium, which explored the intersection of empirical legal methods and critical race theory. In this phase, I updated the empirical legal analysis in a prior article, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 Michigan Journal of Race and Law 1 (2011), in three ways. First, I lengthened the time horizon from 18 months to 24 months, increasing the …

Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to …

Challenges Of "Sameness": Pitfalls And Benefits To Assumed Connections In Lawyering, Carwina Weng, Lynn Barenberg, Alexis Anderson

Articles by Maurer Faculty

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process.

Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted in …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal concepts such as …

Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng

Articles by Maurer Faculty

Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client's culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client's culture. It therefore suggests that multicultural lawyering training should begin with …

Suppressing Memory, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

Better Trials Through Science: A Defense Of Psychologist-Lawyer Collaboration, J. Alexander Tanford, Sarah Tanford

Articles by Maurer Faculty

A concern of some legal commentators is that lawyers may use psychological persuasion techniques to gain an unfair advantage over their courtroom opponents and subvert the justice system. In this Article, the Tanfords respond to an earlier Article in which Professor Victor Gold raised such concerns. The Tanfords argue that commentators like Gold misunderstand jury behavior and trial process, exaggerating the negative impact of lawyers aided by psychologists. To the contrary, lawyer/psychologist collaboration improves rational decision making by identifying existing biases and devising strategies to correct them. The Tanfords conclude these benefits outweigh any possible abuse, and no reason exists …

Psychiatric Criminology: Is It A Valid Marriage? The Legal View, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Science, Common Sense, And Criminal Law Reform, Jerome Hall

Articles by Maurer Faculty

Professor Hall advocates a reappraisal of the current trend in criminal law of substituting expert psychiatric testimony for common-sense determinations of insanity based on the long experience of the criminal-law tradition. Holding that the average layman is as competent to recognize extreme mental illness as the psychiatric expert, the author discusses the doctrine of the "irresistible impulse" and submits that the current departures from the M'Naghten rule tend to "substitute the ideology of a particular group of psychiatrists for the principle of moral responsibility." Professor Hall suggests that realistic reform cannot be achieved without considering the "moral life and its …

Responsibility And Law: In Defense Of The Mcnaghten Rules, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Psychiatry And Criminal Responsibility, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Psychiatry And The Law -- A Dual Review, Jerome Hall, Karl Menninger

Articles by Maurer Faculty

No abstract provided.

Book Review. Durkheim, E., Suicide -- A Study In Sociology, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

A Re-Examination Of The Basis For Liability For Emotional Distress, Fowler V. Harper, Mary Coate Mcneely

Articles by Maurer Faculty

No abstract provided.

The Innocent Bystander, Bernard C. Gavit

Articles by Maurer Faculty

No abstract provided.

Book Review. Burtt, H. E., Legal Psychology, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Book Review. Alexander, F. And Staub, H., The Criminal, The Judge And The Public, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Book Review. Behaviorism By John B. Watson, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.